Citation Nr: 0603947
Decision Date: 02/10/06 Archive Date: 02/22/06
DOCKET NO. 03-21 494 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, Puerto Rico
THE ISSUES
1. Entitlement to an increased disability rating in excess
of 30 percent for dysthymia, prior to March 11, 2002.
2. Entitlement to an increased disability rating in excess
of 70 percent for dysthymia, since March 11, 2002.
3. Entitlement to an earlier effective date prior to March
11, 2002, for the grant of a total disability rating based
upon individual unemployability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from July 1967 to July
1969.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 1994 RO decision which denied an
increased disability rating in excess of 30 percent for the
veteran's service-connected dysthymia. In December 1994, the
veteran filed a notice of disagreement. In January 1995, the
RO issued a statement of the case, and the following month,
the veteran timely perfected his appeal herein.
In August 1997, the Board remanded the veteran's claim for
additional evidentiary development. In May 2002, the RO
issued a rating decision which, in pertinent part, granted an
increased disability rating of 70 percent for the veteran's
service-connected dysthymia, effective March 11, 2002. The
RO's decision also granted entitlement to a rating of total
disability based on individual unemployability (TDIU),
effective from March 11, 2002.
In December 2002, the veteran filed a statement noting his
continuing disagreement with the increased disability rating
assigned to his service-connected dysthymia. See AB v. Brown,
6 Vet. App. 35, 38 (1993). The veteran's statement also
noted his disagreement with the assigned effective date,
March 11, 2002, for the grant of his TDIU rating.
In June 2003, the RO issued a supplemental statement of the
case addressing the issue of entitlement to an earlier
effective date prior to March 11, 2002, for the grant of a
TDIU rating. The veteran timely perfected his appeal of this
issue in July 2003.
FINDINGS OF FACT
1. Prior to March 11, 2002, the veteran's dysthymia produced
no more than a definite degree of impairment of social and
industrial adaptability, and it produced no more than
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal) due to various symptoms.
2. Since March 11, 2002, the veteran's dysthymia has been
manifested by no more than severe industrial and social
impairment, and it produces no more than occupational and
social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood.
3. Prior to March 11, 2002, the evidence of record does not
show that the veteran's service-connected dysthymia alone
precludes all substantially gainful employment.
CONCLUSIONS OF LAW
1. Prior to March 11, 2002, the criteria for a rating in
excess of 30 percent for dysthymia have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.132, Diagnostic
Code 9405 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9433
(2005).
2. Since March 11, 2002, the criteria for a rating in excess
of 70 percent for dysthymia have not been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9405
(1996); 38 C.F.R. § 4.130, Diagnostic Code 9433 (2005).
3. Prior to March 11, 2002, the criteria for a TDIU rating
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107;
38 C.F.R. §§ 3.102, 3.159, 3.326, 3.340, 3.341, 4.16 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has reviewed all the evidence in the veteran's
claims folder. Although the Board has an obligation to
provide reasons and bases supporting this decision, there is
no need to discuss, in detail, all of the evidence submitted
by the veteran or on his behalf. Rather, the Board's
analysis below will focus specifically on what the evidence
shows, or fails to show, as to each of the issues addressed
herein.
The veteran is seeking an increased disability rating for his
service-connected dysthymia. He is also claiming an earlier
effective date, prior to March 11, 2002, for the grant of his
TDIU rating.
Disability evaluations are determined by the application of a
schedule of ratings based on average impairment in earning
capacity. 38 U.S.C.A. § 1155 (West 2002). Requests for
increased disability ratings require consideration of the
medical evidence of record compared to the criteria in the VA
Schedule for Rating Disabilities. 38 C.F.R., Part 4 (2005).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005);
Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).
When rating a veteran's service-connected disability, the
entire medical history must be considered. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim. Francisco v. Brown, 7 Vet.
App. 55 (1994).
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
veteran's ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10. It is also necessary to
evaluate the disability from the point of view of the veteran
working or seeking work, 38 C.F.R. § 4.2, and to resolve any
reasonable doubt regarding the extent of the disability in
the veteran's favor. 38 C.F.R. § 4.3. If there is a
question as to which evaluation to apply to the veteran's
disability, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Historically, the veteran served on active duty in the Army
from July 1967 to July 1969. A post service VA examination,
performed in August 1969, concluded with a diagnosis of
depressive reaction. In November 1969, the RO issued a
rating decision which granted service connection, at a 30
percent disability rating, for depressive reaction, effective
from July 1969. The disability rating assigned to this
condition was reduced to 10 percent from December 1980 to
September 1988, following which the RO granted an increased
disability rating of 30 percent, effective from September
1988. In June 1994, the Board issued a decision which, in
part, denied an increased disability rating in excess of 30
percent for dysthymic disorder.
In October 1994, the RO denied an increased disability rating
in excess of 30 percent for dysthymia. The veteran
subsequently appealed this decision seeking a higher
disability rating. In May 2002, the RO issued a rating
decision which, in pertinent part, granted an increased
disability rating of 70 percent for the veteran's service-
connected dysthymia, effective March 11, 2002. The RO's
decision also granted entitlement to a TDIU rating, effective
from March 11, 2002.
During the pendency of this appeal, regulatory changes have
amended the rating criteria for evaluating psychiatric
disabilities.
In increased rating cases such as this one, where the rating
criteria have been amended during the course of the appeal,
the Board considers both the former and the current schedular
criteria. Should an increased rating be warranted under the
revised criteria, that award may not be made effective before
the effective date of the change.
Under the old criteria, in effect prior to November 7, 1996,
a 30 percent rating is assigned when there is definite
impairment in the ability to establish or maintain effective
and wholesome relationships with people, and psychoneurotic
symptoms result in such reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. A 50 percent rating is assigned when
the ability to establish or maintain effective or favorable
relationships with people is considerably impaired, and by
reason of psychoneurotic symptoms the reliability,
flexibility, and efficiency levels are so reduced as to
result in considerable industrial impairment. 38 C.F.R.
§ 4.132, Diagnostic Code 9405 (1996).
Under the new rating, effective from November 7, 1996, a 30
percent rating is warranted when there is occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events). A rating of 50 percent is
assigned for occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. 38
C.F.R. § 4.130, Diagnostic Code 9433.
The regulations establish a general rating formula for mental
disorders. 38 C.F.R. § 4.130. Ratings are assigned according
to the manifestation of particular symptoms. However, the
use of the term "such as" in 38 C.F.R. § 4.130 demonstrates
that the symptoms after that phrase are not intended to
constitute an exhaustive list, but rather are to serve as
examples of the type and degree of the symptoms, or their
effects, that would justify a particular rating. Mauerhan v.
Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence
considered in determining the level of impairment under
§ 4.130 is not restricted to the symptoms provided in the
diagnostic code. Instead, VA must consider all symptoms of a
claimant's condition that affect the level of occupational
and social impairment, including, if applicable, those
identified in the DSM-IV (American Psychiatric Association:
Diagnostic and Statistical Manual of Mental Disorders (4th
ed. 1994)). Id.
A. Prior to March 11, 2002
A VA psychiatric examination, performed in August 1994, noted
that the veteran had been unemployed since 1988. The veteran
reported symptoms of irritability and aggressiveness. Mental
status examination revealed him to be alert and fully
oriented. His mood was slightly depressed and anxious. His
affect was constricted and his attention good. The veteran's
speech was clear and coherent, and his memory was good. He
was not hallucinating, and not suicidal or homicidal.
Insight and judgment were good, and he exhibited good
impulses. The report concluded with a diagnosis of
dysthymia, mild.
A February 1995 treatment report noted the veteran's
complaints concerning his neighbor. The report noted that he
was able to control his impulses with spiritual strength from
his religion and his aging mother. Mental status examination
revealed that he was not suicidal or homicidal, and that his
speech was coherent and relevant. The report also noted that
he was irritable and depressed.
In April 1996, a second VA psychiatric examination was
conducted. The report noted that the veteran was not
employed, and that he had not been hospitalized for his
psychiatric condition since June 1989. Mental status
examination revealed that the veteran was dressed casually,
and not very clean or neat. His speech was verborrheic and
monotonous, but there was a very strong voluntary component
felt. He was fully oriented, and somewhat depressed. His
judgment was not impaired, and he differentiated well between
right and wrong. He did mention homicidal manifestations,
but his affect did not correspond to it. The report
concluded with a diagnosis of dysthymia, and listed a Global
Assessment of Functioning (GAF) score of 60.
In October 1997, another VA psychiatric examination was
conducted. The report noted the veteran's complaints of
aggressiveness towards his mother. Mental status examination
revealed that the veteran was clean, adequately dressed and
groomed. He was alert and fully oriented. His mood was
tense, guarded, defensive, uncooperative, evasive and
somewhat depressed. His affect was blunted. Concentration
and memory were good, and his speech was clear and coherent.
He was not hallucinating, and not homicidal or suicidal.
Insight and judgment were fair. The report concluded with a
diagnosis of dysthymia, and listed a GAF score of 65. The VA
examiner noted that the veteran has difficulties in
interpersonal relationships preventing him from properly
establishing social and working relationships, and it appears
that the veteran could not be employed where he has to
interact with others or have direct supervisory pressures.
In November 1997, a VA social and industrial survey was
conducted. The report noted that the veteran was currently
unemployed. In the past, he reported working for fifteen
years as a driver and messenger. He also reported working
from 1986 to 1988 as a painter for the VA hospital. The
report noted that the veteran's home was in a middle class
neighborhood, and was assessed to be in good condition on the
inside and out. The report noted that the veteran was not
initially home, but that he soon arrived with what appeared
to be white stains from cement on his hands. He reported
feeling depressed The veteran's neighbor reported that he
does not socialize much. His relationship with his mother
was described as adequate.
Thereafter, the record shows that a treatment report, dated
in September 2001, concluded with diagnoses of schizophrenia,
paranoid type, chronic, and rule out depression, not
otherwise specified. The report listed a GAF score of 50.
In February 2002, a second VA social and industrial survey
was conducted. The report noted that the veteran was mostly
affected in the area of interpersonal relations, which limits
his ability to maintain a job where he is subjected to
pressures from supervisors and situations with fellow
workers. The veteran's poor frustration tolerance in
relation to others was considered to result in his basically
remaining alone and relating only to his mother, who is
apparently the only family member that he is close to.
After reviewing the veteran's claims folder, the Board
concludes that the veteran's dysthymic disorder, prior to
March 11, 2002, is properly rated as 30 percent disabling.
Under the rating criteria, in effect prior to November 7,
1996, there must be a "definite" degree of social and
industrial impairment in order for a 30 percent rating for
dysthymia to be assigned. For this purpose, the term
"definite" has been construed as "distinct, unambiguous, and
moderately large in degree." It represents a degree of
social and industrial inadaptability that is "more than
moderate but less than rather large." VAOPGCPREC 9-93. The
next highest rating, a 50 percent rating, is assigned when
the ability to establish or maintain effective or favorable
relationships with people is considerably impaired, and by
reason of psychoneurotic symptoms the reliability,
flexibility, and efficiency levels are so reduced as to
result in considerable industrial impairment. 38 C.F.R.
§ 4.132, Diagnostic Code 9405 (1996).
Under the current criteria, the next highest rating, a 50
percent rating, is assigned for dysthymic disorder when it
results in occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships.
As provided by the Diagnostic and Statistical Manual of
Mental Disorders (4th ed.1994) (DSM-IV), the Global
Assessment of Functioning (GAF) is a scale reflecting the
psychological, social, and occupational functioning on a
hypothetical continuum of mental-health illness. See Richard
v. Brown, 9 Vet. App. 266, 267 (1996). For example, a GAF
score of 41 to 50 is meant to reflect an examiner's
assessment of serious symptoms (e.g. suicidal ideation,
severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school
functioning (e.g. no friends, unable to keep a job). A GAF
of 51 to 60 is defined as moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). A GAF of 61 to 70 is defined as some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty
in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but
generally functioning pretty well, with some meaningful
interpersonal relationships. A GAF of 71 to 80 indicates
that if symptoms are present at all, they are transient and
expectable reactions to psychosocial stressors with no more
than slight impairment in social and occupational
functioning.
The Board appreciates that prior to March 11, 2002, the
veteran's psychiatric disorder does produce impairment, both
in his work adjustment and social contacts, and the condition
has required periodic outpatient care including use of
medication. Nonetheless, the GAF scores shown in the record
prior to March 11, 2002, together with findings recorded in
the medical evidence, when considered as a whole, do not
suggest impairment more than what is contemplated by the
current rating. For the most part, the veteran has been
alert and oriented, with a depressed mood and constricted
affect. His speech was clear and coherent, and his memory,
insight and judgment were good. He was not shown to be
hallucinating, and was not suicidal or homicidal.
Based on all the evidence, the veteran's dysthymic disorder
had been under good control prior to March 11, 2002. The
weight of the credible evidence demonstrates that the
dysthymic disorder produced no more than a definite degree of
impairment of social and industrial adaptability, and it
produces no more than some occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal) due to various symptoms.
This supports no more than a 30 percent rating for dysthymic
disorder under either the old or new rating criteria.
The preponderance of the evidence is against the claim for a
rating higher than 30 percent for dysthymic disorder.
Consequently, the benefit-of-the-doubt rule does not apply,
and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
B. Since March 11, 2002
Since March 11, 2002, the veteran's service-connected
dysthymic disorder was rated by the RO as 70 percent
disabling.
As noted above, the criteria for evaluating mental disorders
were changed during the course of the appeal. Under the
criteria in effect prior to November 7, 1996, a 70 percent
evaluation is warranted where the ability to establish and
maintain effective or favorable relationships with people is
severely impaired, and the psychoneurotic symptoms are of
such severity and persistence that there is severe impairment
in the ability to obtain or retain employment. A 100 percent
evaluation is warranted (1) when the attitudes of all
contacts except the most intimate are so adversely affected
as to result in virtual isolation in the community; (2) where
there are totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic, and
explosions of aggressive energy resulting in profound retreat
from mature behavior; or (3) where the veteran is
demonstrably unable to obtain or retain employment. 38
C.F.R. § 4.132, Diagnostic Code 9405 (1996).
Under the rating criteria effective from November 7, 1996, a
70 percent is assigned for occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. A 100 percent rating is warranted if there is
total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations; gross
inappropriate behavior; persistent danger of hurting self or
others; intermittent inability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. 38 C.F.R.
§ 4.130, Diagnostic Code 9433 (2005). The psychiatric
symptoms listed in the rating criteria are not exclusive, but
are examples of typical symptoms for the listed percentage
ratings. Mauerhan v. Principi, 16 Vet.App. 436 (2002)
On March 11, 2002, the veteran underwent a VA examination for
mental disorders. The report of this examination noted that
the veteran had not been hospitalized for his psychiatric
condition since 1989, and that he was receiving ongoing care.
The report noted the veteran's history of working for Kodak
for approximately fifteen years, at which time he lost his
job due to a reduction in force. He subsequently reported
being employed for two and one-half years working in
housekeeping for the VA. The report noted that the veteran
was currently taking medication at bedtime for his
psychiatric condition. The report also noted that he suffers
from multiple other physical problems, including swollen
legs, headaches and high blood pressure. Mental status
examination revealed that the veteran was alert and oriented,
and casually dressed and groomed. His responses were
relevant and coherent. He indicated that he was caring for
his mother, and that he felt it was his responsibility to due
so as the oldest sibling. He reported that his mother gives
him a great deal of support. He also reported that he tries
to avoid other people, due to his poor frustration tolerance,
and tendency to react impulsively. The veteran reported that
he keeps busy around the house to keep him out of trouble and
to keep his mind off his problems. The veteran was not
delusional or hallucinating, and he was no suicidal or
homicidal. His affect was adequate, mood depressed. He was
fully oriented, and memory and intellectual functioning were
adequate. Judgment was fair, and insight was very poor. The
report concluded with a diagnosis of dysthymia, chronic. It
listed a GAF score ranging from 60 to 65. The VA examiner
further commented the veteran was mostly affected in the area
of interpersonal relations, which therefore interferes in his
ability to maintain a job where he is submitted to pressures
from supervisors and situations with fellow workers. It is
because of his poor frustration tolerance in relation to
others that he basically remains alone relating only to his
mother, who apparently is the only family member that he has
close to him. The GAF score was characterized as showing a
moderate to moderately severe degree of disability.
A treatment report, dated in March 2003, noted that the
veteran was limping and having difficulty walking. His
personal hygiene and grooming were poor. Mental status
examination revealed him to be alert, coherent, logical and
relevant in contact with reality. He denied any self harm
ideations or harm to others, and no hallucinations were
report. He did report complaints of multiple physical
problems. Treatment reports, dated in August and November
2003, noted that the veteran's personal hygiene and grooming
were adequate. His thoughts were logical, coherent and
relevant in contact with reality. There were no suicidal or
homicidal ideations, and no hallucinations.
In October 2003, a VA mental examination was conducted solely
for purposes of determining the veteran's competency. The
report noted that the veteran's mother has been getting on
his nerves, but that he goes to her house whenever she needs
his assistance. The remainder of his time he spends at his
own home, where he prefers to be alone, isolated, and not
bothered by anyone. The VA examiner noted that the veteran
has no significant memory or intellectual impairment, or any
impairment in his judgment that would prevent him from making
adequate use of his monetary benefits.
A social work home visit report, dated in March 2004, noted a
neighbor's opinion that the veteran was a nice person, who
has suffered greatly after being abandoned and divorced by
his spouse. The neighbor indicated that the veteran's mother
visits him on a regular basis. The report noted that the
veteran has been unable to drive due to a stroke. The report
noted that the veteran continues to live in his own home.
The weight of the credible evidence demonstrates that during
the period since March 11, 2002, the veteran's dysthymic
disorder produced no more than severe industrial and social
impairment, as contemplated by the earlier criteria for a 70
percent rating. In that regard, the Board notes the GAF
score ranging from 60 to 65 on his March 2002 VA examination.
Further, during this period, the veteran's dysthymic disorder
did not produce more than occupational and social impairment,
with deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, as contemplated by
the current criteria for a 70 percent rating.
During this period, his dysthymic disorder symptoms, standing
alone, did not prevent gainful employment, and did not
otherwise meet the criteria for a 100 percent rating under
either the old or new rating criteria.
The preponderance of the evidence is against the claim for a
rating for dysthymia higher than 70 percent for the period
since March 11, 2002. Thus, the benefit-of-the-doubt rule
does not apply, and the claim must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
C. Entitlement to an earlier effective date for the grant of
a total disability rating based upon individual
unemployability.
The veteran is seeking entitlement to a TDIU rating prior to
March 11, 2002.
A TDIU is assigned when service-connected disabilities result
in such impairment of mind or body that the average person is
so disabled that he is precluded from following a
substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15
(2005). If there is only one service-connected disability,
it must be rated at 60 percent or more; if there are two or
more service-connected disabilities, at least one must be
rated at 40 percent or more and the combined rating must be
at least 70 percent. 38 C.F.R. § 4.16(a). The service-
connected disabilities must be so severe as to produce
unemployability, in and of themselves, without regard to
unemployability attributable to age of the veteran or to
other disabilities for which service connection has not been
granted. 38 C.F.R. § 3.341. That is, a TDIU may not be
assigned if unemployability is a product of advanced age, or
of other nonservice-connected disabilities, rather than a
result of functional impairment due solely to service-
connected disabilities. 38 C.F.R. § 4.19.
In this case, the veteran has been granted a TDIU rating
effective from March 11, 2002. The veteran is service-
connected solely for his dysthymia, which prior to March 11,
2002, was rated 30 percent disabling. The veteran's service-
connected disability rating of 30 percent fails to meet the
percentage requirement of 38 C.F.R. § 4.16(a) for
consideration of a TDIU rating on a schedular basis.
Further, the overall disability picture fails to show the
veteran's service connected disability otherwise produced
impairment so severe as to render him unemployable prior to
March 2002.
In this regard, a review of the claims folder reveals that
the veteran was awarded disability benefits from the Social
Security Administration (SSA), effective from June 1988.
However, the Board does not find this determination to be
persuasive. See Beaty v. Brown, 6 Vet.App. 523, 538 (1994)
(there is no statutory or regulatory authority for the
determinative application of SSA regulations to the
adjudication of VA claims, and VA has not adopted certain SSA
regulations that would be beneficial to a claimant). The
award of SSA benefits occurred prior to the Board's decision
in June 1994, which found that an increased disability rating
in excess of 30 percent was not warranted for the veteran's
dysthymic disorder. Moreover, as noted in SSA's Notice of
Award, the veteran's condition was expected to improve.
Finally, as noted above, the Board does not find the
veteran's service-connected dysthymic disorder to warrant
more than a 30 percent disability rating prior to March 11,
2002.
Notably, there is no medical evidence of record prior to
March 11, 2002, suggesting that the veteran was precluded,
solely by his service-connected dysthymic disorder, from
following a substantially gainful occupation. It should also
be noted that there is no indication in the claims folder
that the veteran sought out employment during this time
frame. Thus, the Board does not find the evidence
establishes the veteran was unemployable due solely to his
service connected disability prior to March 2002.
Duty to Notify and Assist
VA has certain notice and assistance requirements it affords
claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002);
38 C.F.R. § 3.159(b) and (c) (2004).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits, and must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. 18 Vet. App. at 120-121.
The October 2001 letter from the RO, the October 1994 and May
2002 RO decisions, the January 1995 statement of the case
(SOC), the April 1996, April 1997, June 2003, and September
2005 supplemental SOCs, and the Board's prior remand in
August 1997, advised the veteran what information and
evidence was needed to substantiate his claim herein and what
information and evidence had to be submitted by him, namely,
any additional evidence and argument concerning the claimed
condition and enough information for the RO to request
records from the sources identified by the veteran. The
documents also advised him what information and evidence
would be obtained by VA, and clearly implied the veteran
should submit any relevant evidence in his possession. (The
September 2002 supplemental statement of the case also
contained the regulatory provisions that set out VA's notice
requirements.) Thus, the Board finds that the content
requirements of the notice VA is to provide have been met.
Further, the Board finds that any defect with respect to the
timing of the notice provided was harmless error. Although
complete notice may not have been provided to the appellant
prior the initial adjudication, the appellant has not been
prejudiced thereby. The content of the notice provided to
the appellant fully complied with the requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's
duty to notify prior to the last adjudication in the
September 2005 supplemental statement of the case. Also, the
appellant has been provided with every opportunity to submit
evidence and argument in support of his claim, to respond to
VA notices, and otherwise afforded a meaningful opportunity
to participate effectively in the processing of his claim.
Most recently, in September 2005, he indicated that he had no
additional evidence to submit in support of his claim herein.
Thus, the Board considers any defect in the timing of the
notice provided to the veteran to be harmless.
With respect to the VA's duty to assist, the RO obtained, or
made reasonable attempts to obtain, all relevant evidence
identified by the veteran. Moreover, the veteran was
provided multiple VA examinations in connection with this
claim. Thus, the Board considers the VA's duty to assist is
satisfied.
In the circumstances of this case, additional efforts to
assist or notify him would serve no useful purpose. VA has
satisfied its duties to inform and assist the veteran at
every stage of this case as it pertains to the claim herein
adjudicated. Therefore, he will not be prejudiced as a
result of the Board proceeding to the merits of the claim.
ORDER
An increased disability rating in excess of 30 percent for
dysthymic disorder, prior to March 11, 2002, is denied.
An increased disability rating in excess of 70 percent for
dysthymic disorder, since March 11, 2002, is denied.
An effective date earlier than March 11, 2002, for an award
of a TDIU rating, is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs